Holding

Section 37 applies to offences punishable for imprisonment of five years or more, including those under Section 20(b)(i), and therefore bail cannot be granted unless the statutory conditions are satisfied.

Summary

The Intelligence Officer of the Narcotics Control Bureau recovered 18.7 kg of ganja from Shambhu Sonkar and charged him under Section 20(b)(i) of the NDPS Act. The trial court denied bail, but the Calcutta High Court granted bail, holding that Section 37 of the NDPS Act did not apply because the maximum punishment for the offence was five years. On appeal, the Supreme Court examined whether Section 37, which makes offences punishable with imprisonment of five years or more non‑bailable unless two conditions are met, covers offences under Section 20(b)(i). The Court held that the plain reading of Section 37 includes offences with a maximum term of five years, and there is no legislative basis to exclude Section 20(b)(i) from its operation. Consequently, the High Court's bail order was set aside, the bail bonds were cancelled, and the accused was ordered to be taken into custody with the trial expedited.

Issues considered

Whether Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 applies to offences punishable under Section 20(b)(i) which carry a maximum imprisonment of five years.

Legislation cited

Code of Criminal Procedure, 1973s. 439
Narcotic Drugs & Psychotropic Substances Act, 1985s. 20(b)(i), s. 37

Subjects

NDPS ActbailSection 37Section 20(b)(i)non‑bailable offencenarcoticsSupreme Courtcriminal procedure

Judgment

INTELLIGENCE OFFICER NARCOTICS A
CONTROL BUREAU
v.
SAMBHUSONKARANDANR.

FEBRUARY 2, 2001
B
[M.B. SHAH AND S.N. VA RIA VA, JJ.]

Narcotic Drugs & Psychotropic Substances Act, 1985: Sections 20(b)(i)
and 37.
c
Bail-Grant of-Conditions to be fu(filled-Ganja recovered from
accused-High Court granted bail on the ground that the restriction imposed
by Section 3 7 was not applicable as the maximum imprisonment provided for
the offence under Section 20(b}(i) was 5 years-Correctness of-Held: In
appropriate cases court may impose a maximum punishment of 5 years under
Section 20(b)(i)-Therefore, there is no reason to exclude the said clause D
from the operation of Section 37-Hence, High Court erred in granting
bail-Code. of Criminal Procedure, 1973, Section 439.

The appellant recovered ganja from the respondent and the Additional
District Judge dismissed the respondent's bail application. But the High E
Court allowed the bail application by holding that the restrictions imposed by
Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985
would not be applicable as the maximum imprisonment provided for the offence
under Section 20(b )(i) was 5 years. Hence this appeal.

Allowing the appeal, the Court F
HELD : l. The scheme of Section 37 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 reveals that the exercise tJfthe power to
grant bail by the Special Judge is not only subject to the limitations cortained
under Section 439 of the Code of Criminal Procedure, 1973, but is also
subject to the limitation placed by Section 37 of the Act which commences G
with a non-obstante clause. The operative part of the said Section is in the
negative in prescribing the enlargement of bail of any person accused of
commission of an offence under the Act unless two conditions are satisfied.
The first conditions is that prosecution must be given an opportunity to oppose
the application and the second is that the Court must be satisfied that there H
821
822 SUPREME COURT REPORTS [200 I) I S.C.R.
A arc reasonable grounds for believing that the accused is not guilty of such
offence. If either of these two conditions is not satisfied, the ban for granting
bail operates. As per the mandate of Section 37, no person accused of an
offence punishable for a term of imprisonment of 5 years or more under the
Act can be released on bail unless the aforesaid conditions are satisfied. Pre-
B condition for application of Section 37(l)(b) would be that the offence is
punishable for a term of imprisonment of 5 years or more. Plain reading of
the above said clause makes it clear that in case where tht person is accused
of an offence punishable for a term of imprisonment of 5 years then he
cannot be released unless the conditions mentioned therein are satisfied. In
case of offence punishable under Section 20(~)(i), maximum punishment is
C for a term of imprisonment of 5 years and a fine, which may extend to
Rs. 50,000. There is no justifiable reason to hold that the maximum term of
imprisonment is to be excluded for the purpose of interpretation and Section
37 would not cover in its fold offence punishable under Section 20(b)(i).
1824-G-H; 825-A-DI

D 2. Further, even ifthe legislative intent in the context of other provisions,
which provide for punishment is considered, it would be clear that Section 37
would cover in its fold the offence punishable under Section 20(b)(i). Provisions
empowering the Court to impose punishment can be divided into four parts,
namely, (i) less than five years, (ii) up to five years (iii) more than five years
E and (iv) providing death penalty. Sections 26, 27 and 32 provide for
imprisonment for a term, which may be less than five years. Section 25(a)
provides that the imprisonment may extend up to ten years. Other Sections
namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide
that the punishment shall not be 'for a term less than ten years'. Except
Section 20(b)(i), there is no provisions which prescribes that imprisonment
F may extend to five years. For the offence punishable under the said Section,
in appropriate cases, Court may impose maximum punishment of five years.
Therefore, there is no reason to exclude the said clause form the operation of
Section 37. 1825-D-FI

Maktool Singh v. State of Puniab, 1199913 SCC 321, relied on.
G CRIMINAL APPELLATE JURISDICTION : Criminal Appe.al No.
137 of 200 I.

From the Judgment and Order dated 7.3.2000 of the Calcutta High Court
in Crl. M. No. 456 of 2000.

H Mukul Rohtagi, Tapash Ray. Ms. Sushma Suri, Ms. Binu Tamta, Ms.
INTELLIGENCE OFFICER, NCB v. SAM13HU [SHAH, J.] 823
Deepti Chowdhury, Di lip Kr. Das, Anup Chakraborty, Ajay Singh, Sarla Chandra A
and Tara Chandra Sharma for the appearing parties.

The Judgment of the Court was delivered by

SHAH, J. Leave granted. ,

Limited question involved in this appeal is whether the restrictions
B
imposed under Section 37 of the Narcotic Drugs & Psychotropic Substances
Act, 1985 (hereinafter referred to as "the Act") would be applicable in a case
where offence is punishable under Section 20 (b) (i) for possessing Ganja?
It is the prosecution version that acting on intelligence report a batch of
Narcotic Control Bureau officers searched the premises of respondent No. I, C
Shambhu Sonkar, at G.T. Road, P.S. Golabari, District Howrah on 22.11.1999
-""ff- and recovered 18.7 Kgs. of Ganja and a sum of Rs. 4,370. On the same date
a confessional statement of the respondent was also recorded. The respondent
filed a bail application before the Additional District Judge, Howrah, which
was rejected by order dated 2nd February, 2000. Thereafter, the respondent
approached the High Court of Calcutta and the High Court by its order dated D
7th March, 2000 allowed the said bail application by holding that restrictions
imposed by Section 37 of the N.D.P.S. Act, 1985 (hereinafter referred to as
'NDPS Act') would not be applicable as the maximum imprisonment provided
for the offence under Section 20(b )(i) is 5 years. That order is challenged by
filing the present petition under Article 136 of the Constitution. E
Learned Additional Solicitor General submitted that order passed by the
High Court is on the face of it against the statutory ma11date provided under
Section 37. As against this, learned counsel appearing for the respondents
submitted that the interpretation given by the High Court is justified, particularly
because it affects personal liberty of a citizen who is yet to be tried. For F
appreciating the rival contentions we would refer to Sections 20 and 37 of the
said Act which read thus:

"20. Punishment for contravention in relation to cannabis plant and
cannabis.-Whoever, in contravention of any provision of this Act
or any rule or order made or condition of licence granted thereunder,- G

(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis,
shall be punishable,- H
824 SUPREME COURT REPORTS (200 I] I S.C.R.

A (i) where such contravention relates to ganja or the cultivation of ~
cannabis plant, with rigorous imprisonment for a term which may
extend to five years and shall also be liable to fine which may
extend to fifty thousand rupees;
(ii) where such contravention relates to cannabis other than ganja,
B with rigorous imprisonment for a term which shall not be less ·
than ten years but which may extend to twenty years and shall
also be liable to fine which shall not be less than one lakh rupees
and which may extend to two lakh rupees;

Provided that the court may, for reasons to be recorded in the judgment,
C impose a fine exceeding two lakh rupees.

3 7. Offences to be cognizable and non-bailable.--{ I) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of
1974):

(a) every offence punishable under this Act shall be cognizable;
D
(b) no person accused of an offence punishable for a term of
imprisonment of five years or more under this Act shall be
released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to
E. oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he
is not likely to commit any offence while on bail. ~
F
(2) The limitations on granting of bail specified in clause (b) of
sub-section (I) are in addition to the Jim itations under the Code of
Crim in al Procedure, 1973 (2 of 1974) or any other law for the time being
in force on granting of bail."
G The scheme of section 37 reveals that the exercise of the power to grant
bail by the Special Judge is not only subject to the limitations contained ~-
under Section 439 of the Cr.P.C., but is also subject to the limitation placed
by Section 37 which commences with non-obstante clause. The operative part
of the said section is in negative in prescribing the enlargement of bail of any
person accused of commission of an offence under the Act unless two
H conditions are satisfied. The first condition is that prosecution must be given
INTELLIGENCE OFFICER, NCB v. SAMBHU [SHAH, .I.] 825
an opportunity ·to oppose the application and the second is that tlie Court A
-'y must be satisfied that there are reasonable grounds for believing that he is
not guilty of such offence. If either of these two conditions is not satisfied,
the ban for granting bail operates. As per the mandate of Section 37, no
person accused of an offence punishable for a term of imprisonment of 5
years or more under the Act can be released on bail unless the conditions
mentioned in sub-clauses (i) and (ii) of Clause (b) are satisfied. Pre-condition B
for application of clause (b) would be that offence is punishable for a term
-r of imprisonment of 5 years or more. Plain reading of the above said clause
makes it clear that in case where the person is accused of an offence punishable
for a terms of imprisonment of 5 years then he cannot be released unless the
conditions mentioned therein are satisfied. In case of offence punishable c
under Section 20 (b) (i), maximum punishment is for a term of imprisonment,
of 5 years and a fine which may extend to Rs. 50,000. There is no justifiable
-+- reason to hold that maximum term of imprisonment is to be excluded for the
purpose of interpretation and Section 37 would not cover in its fold offence
punishable under Section 20(b )(i).
D
Further, even if we consider the legislative intent in context of other
provisions which provide for punishment it would be clear that Section 37
would cover in its fold the offence punishable under Section 20(b)(i). Provisions
empowering the Court to impose punishment can be divided into four parts,
~
namely, (i) less than five years, (ii) up to five years (iii) more than five years
and (iv) providing death penalty. Sections 26, 27 and 32 provide for E
imprisonment for a term which may be less than five years. Section 25(a)
provides that the imprisonment may extend up to ten years. Other sections,
namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that
punishment shall not be 'for a term less than ten years'. Except Section
+.- 20(b)(i), there is no provision which prescribes that imprisonment may extend F
to five years. For the offence punishable under said Section, in appropriate
cases, Court may impose maximum punishment of five years. Therefore, there

- is no reason to exclude the said clause from the operation of Section 37.

The aforesaid interpretation is also in consonance with the legislative
object. The Act has provided stringent provisions for the control and regulation G
of operations relating to Narcotic Drugs and Psychotropic Substances and
- .J(•
matters connected therewith. For granting of bail, in the Statement of Objects
and Reasons for introducing Bill 125 of 1988 (Act 2 of 1989), the following
passage has been stated:

"Even though the major offences are non-bailable by virtue of the H
826 SUPREME COURT REPORTS [2001] 1 S.C.R.

A level of punishment, on technical grounds. drug offenders were being
released on bail. In the Iight of certain difficulties faced in the
enforcement of the NDPS Act, 1985 the need to amend the law to
further strengthen it, has been felt."

Further, in Maktool Singh v. State of Punjab, [1999] 3 SCC 321 this
B Court while interpreting Section 32A which provides that no sentence awarded
under the Act other than Section 27 shall be suspended or remitted or
commuted, considered Section 37 along with the scheme of the Act and held
thus:

"The only offences exempted from the purview of the aforesaid rigours
c on the bail provisions are those under Sections 26 and 27 of the Act.
The fonner is punishable up to a maximum imprisonment for three
years and the latter up to a maximum imprisonment for one year. For
all other offences, the court's power to release an accused on bail
during the period before conviction has been thus drastically curtailed
by providing that if the Public Prosecutor opposes the bail application,
D
no accused shall be released on bail, unless the court is satisfied that
there are reasonable grounds for believing that he is not guilty of
such offence."

In view of the foregoing discussion, it would be difficult to accept the
E contention of the learned counsel for the respondent that the liberal
interpretation given by the High Court to Section 37 is justified as it 3ffects
personal liberty of a citizen who is yet to be tried. In our view, considering
the legislative intent of curbing the practice of giving bail on technical ground
in a crime which adversely affects the entire society including lives of number
of persons and the .object of making stringent provisions for control of illicit
F traffic in narcotic drugs and psychotropic substances, there is no reason to
accept the construction of the section which its language can hardly bear.

In the result, the appeal is allowed, the impugned order passed by the
High Court releasing the respondent on bail is set aside. Bail bonds of the
G accused stand cancelled and he is directed to be taken into custody. The trial
court is directed to expedite the trial.

v.vs Appeal allowed.